The three facts you have led with are the three that most often make Indian families assume a daughter has no claim, and none of them is a legal disqualification. It is worth taking them off the table before getting to the arithmetic.
Residence, marriage and passport
The Hindu Succession Act, 1956 applies by religion. It applies to any person who is a Hindu by religion in any of its forms, to Buddhists, Jains and Sikhs, and to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is shown that Hindu law would not have governed him. There is no citizenship condition and no residence condition anywhere in that provision. Marriage does not sever a daughter's rights either. Our guide on a married daughter's rights in her parents' property deals with that belief directly.
Foreign exchange law is a separate layer and it does not take the inheritance away. The Foreign Exchange Management Act, 1999 says a person resident outside India may hold, own, transfer or invest in Indian currency, security or immovable property in India if that property was acquired, held or owned by him when he was resident in India, or was inherited from a person who was resident in India. Inheritance is expressly protected. What can be regulated is what you do next with the asset, particularly moving the money out.
The first question: what kind of property is it
The answer differs, and this is where families waste years arguing at cross purposes.
- Self acquired property. Property your father bought or earned. On an intestacy it devolves first on the Class I heirs.
- Mitakshara coparcenary property. An interest in a joint family estate. Since the 2005 amendment a daughter of a coparcener is, by birth, a coparcener in her own right in the same manner as a son, with the same rights and the same liabilities.
- Property held with others. A jointly bought flat, a nominated deposit or an asset already the subject of a family arrangement each raise their own question first.
The Class I arithmetic on self acquired property
Where a male Hindu dies intestate, the property devolves first on the relatives specified in Class I of the Schedule, and only if there is no Class I heir does it go to Class II, then agnates, then cognates. The distribution among Class I heirs follows fixed rules: the widow, or all the widows together, take one share; the surviving sons and daughters and the mother of the intestate each take one share; and the heirs in the branch of a predeceased son or daughter take one share between them.
So if your father is survived by your mother, you, and two brothers, and his own mother has predeceased him, the estate divides into four equal shares and yours is one of them. Nothing about Sydney changes that.
The coparcenary position
Where the property is Mitakshara coparcenary property, the 2005 amendment made the daughter a coparcener by birth. The Supreme Court settled in August 2020 that the right flows from birth and does not depend on the father being alive on the date of the amendment, while a proviso protects dispositions, alienations, partitions and testamentary dispositions that had already taken place before 20 December 2004. Our guide on the daughter's coparcenary rights after the 2005 amendment explains how the two tracks interact, because a real family estate usually has both kinds of property in it.
The most common way an NRI daughter loses her share is not a court judgment. It is a relinquishment deed, a release deed or a family settlement sent by courier and signed to avoid a family argument. These are registered instruments that transfer real rights. Have any such document read by your own advocate before you sign, and never sign a blank or partly filled page.
What to do from Sydney
- Get the death certificate and the title documents. Sale deed, khata, tax paid receipts, and an encumbrance certificate covering the years since his purchase.
- Establish the heirs on the record. The revenue or administrative certificate naming the legal heirs is the document most Indian offices ask for first, and our comparison of the succession certificate, the legal heir certificate and probate explains which one you actually need for which asset.
- Ask in writing what has already happened. Whether mutation has been applied for, whether anyone has been added to the khata, whether any deed has been registered since the death.
- Put a power of attorney in place properly so that the running of the matter does not depend on your flights.
- Do not let it sit. Delay is not automatically fatal to a co-owner's claim, but it makes proof harder, it lets third parties acquire interests, and it turns a paperwork exercise into litigation.